Among the many privacy challenges posed by social media, one has flown largely under the radar: balancing defendants’ due process rights to access exculpatory information against the crucial privacy protections of the Stored Communications Act (SCA). Here’s the problem: prosecutors have broad powers to demand access to stored communications as necessary to pursue their case, but defendants do not. That means the scales are tipped in favor of prosecutors, which seem unfair.  But a more balanced approach would likely require eroding privacy protections – protections that are more necessary than ever.

The issue was squarely raised last week in Facebook v. Superior Court (Hunter).  Defendants sought communications from Facebook and Instagram that could be highly relevant to their guilt or innocence. However, in a narrow ruling, the California Supreme Court largely sidestepped the question, holding that social media providers must turn over public communications when served with a lawful state subpoena, but are forbidden under the SCA from producing the content of private electronic communications to defendants. The court then punted the case back down to the trial court to determine whether the specific posts sought by the defense were “public” or “private.”

The SCA was enacted to implement important privacy protections by prohibiting communications providers from sharing the contents of communications with both public and private actors, with limited exceptions. In particular, when the government wants access to user communications, the SCA requires it to use legal process ranging from a subpoena to a search warrant, depending on the scenario. After a series of hard-fought legal battles, the rule is clear: the Fourth Amendment requires the government to get a judicially authorized search warrant to access the contents of communications in all cases. Given the range of extraordinarily sensitive communications users entrust to third-party providers, this rule is vitally important to protect users from government fishing expeditions.

But the reality is that the SCA’s protections also create a barrier for criminal defendants who need exculpatory or impeachment information from adverse witnesses’ online accounts. Non-state actors can’t use search warrants, and the SCA forbids them from getting the contents of communications directly from providers. That creates an unequal playing field—and the price of losing the game can be fatal to liberty or even life. What is worse, this imbalance is not unique to electronic communications; defendants face many disadvantages, beginning with the stark reality that they don’t have equal resources to spend gathering evidence.

The defendants in this case, Derrick Hunter and Lee Sullivan, are awaiting trial for murder and other gang-related charges arising out of a drive-by shooting at a bus stop in San Francisco. Hunter’s 14-year-old brother, Quincy, confessed to the shooting and explained to police that he shot the victim, Joaquan Rice, because he feared that Rice would kill him first if he did not act. Quincy reported that Rice repeatedly threatened and bullied him at his job, at his home, and on social media by tagging Quincy in violent posts on Facebook and Instagram. Quincy told police that Sullivan was not in the car during the shooting. The only witness who implicates Sullivan is his ex-girlfriend, Raneesha Lee, who had rented the car used in the drive-by and who was detained in the car shortly after the shooting occurred.

In preparation for trial, Hunter and Sullivan’s defense attorneys served subpoenas on Facebook, Instagram and Twitter to get access to Rice’s and Lee’s social media posts and messages.  They hope to corroborate Quincy’s stated fear of Rice and show evidence that Lee might be motivated to lie about her ex-boyfriend, Sullivan.

Facebook and the other social media providers argued that section 2702(a) of the SCA precluded them from turning over the content sought by the defense attorneys because the SCA states that providers can’t “knowingly divulge to any person or entity the contents of” any “communication” that they store or maintain. The providers suggested that the defendants seek the social media content directly from the parties to the communication.

That suggestion might be reasonable in some instances, but didn’t work here given that one of the authors, Rice, could not consent or be compelled (because he was dead); and the other witness, Lee, could not be found. Indeed, even if Lee could be found, she could refuse to comply with any subpoena by invoking her right to remain silent. That would create yet another constitutional conundrum: pitting a defendant’s rights to a fair and impartial jury trial, and to compel evidence in his defense, against another witness’s constitutional right not to be compelled to incriminate herself.

In this case, the court held that the defense subpoenas were unenforceable under the SCA “with respect to communications addressed to specific persons, and other communications that were and have remained configured by the registered owner to be restricted,” but were enforceable as to “communications that were configured by the registered user to be public” because they fell within SCA section 2703(b)(3)’s lawful consent exception and should thus be disclosed to the defense.

We’re not quarreling with the ruling itself. But this distinction leaves untouched the fundamental imbalance: the SCA provides a means for law enforcement agencies to potentially get access to all content, public and private, via a search warrant if they can show probable cause to believe they will find evidence of a crime, while defense access is restricted to only publicly available information and whatever information they can get directly from the social media user via subpoena. In particular, the court raised but did not decide whether the prosecution could be obliged to seek the exculpatory material sought by the defense. 

There does not seem to be an easy answer to this constitutional conundrum. While the imbalance of power between the prosecution and the defense in access to available electronic evidence is unfair, we should not seek to correct it by sacrificing hard-won privacy protections. We need to get this issue right, and that starts with giving it more visibility and debating solutions.